Exploring the impacts of land tenure system change on the sustainability of common resources in Swaziland

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Page | v DECLARATION

By submitting this thesis electronically, I declare that the entirety of the work contained therein is my own, original work, that I am the sole author thereof (save to the extent explicitly otherwise stated), that reproduction and publication thereof by Stellenbosch University will not infringe any third party rights and that I have not previously in its entirety or in part submitted it for obtaining any qualification.

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Page | vi ABSTRACT

Current customary tenure has negative implications for the sustainable environmental management of common resources in Swaziland in that it perpetuates free-for-all scenarios that result in unabated environmental degradation by all and with none held responsible. The lack of a land policy to provide a framework for land use regulation is a significant driver of common resource destruction, as is the inability of customary tenure to evolve with the times. The cleavage between customary and statutory tenure has led to informal land markets which, if uncontrolled, could wreck not only the environment but the integrity of the traditional Swazi community.

The study calls for inclusive politics which would encourage democratised public participation. After all, it is only after this fact that relevant and acceptable environmental policy can be synthesised. It also calls for the regulation of customary tenure and suggests that there is advantage in mono-ethnicity that can be exploited in trying to chart a more sustainable and morally fair management of common resources in the country.

Common resource governance, property rights, customary land tenure, population growth, migration, sustainable livelihood, Swaziland

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Page | vii OPSOMMING

Huidige tradisionele grondbesit het negatiewe implikasies vir die volhoubare omgewingsbestuur van gemeenskaplike hulpbronne in Swaziland omdat dit scenario‟s vestig waar almal volgens eie voorkeur optree. Dit kan tot knaende omgewingsaftakeling deur almal lei sonder dat iemand daarvoor verantwoordelik gehou word. Die gebrek aan ‟n grondbeleid wat as raamwerk vir die regulering van grondgebruik kan dien, en die onvermoë van tradisionele grondbesit om oor tyd te ontwikkel is belangrike dryfvere vir die vernietiging van gemeenskaplike hulpbronne.

Die gaping tussen tradisionele en statutêre grondbesit het informele grondmarkte laat ontstaan wat tot die ondergang van nie net die omgewing nie, maar die integriteit van die tradisionele Swazi-gemeenskap kan lei as dit nie beheer word nie. Die studie bepleit inklusiewe politiek wat gedemokratiseerde openbare deelname sal aanmoedig. Dit is per slot van sake net hiervolgens wat ‟n relevante en aanvaarbare omgewingsbeleid daargestel kan word. Die studie pleit ook vir die regulering van tradisionele grondbesit en suggereer dat die ontginning van mono-etnisiteit voordelig kan wees om ‟n meer volhoubare en moreel regverdige bestuur van gemeenskaplike hulpbronne in die land te verkry.

Beheer en bestuur van gemeenskaplike hulpbronne, eiendomsregte, tradisionele grondbesit, bevolkingstoename, migrasie, volhoubare lewenswyse, Swaziland.

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Page | viii

There is a growing body of scholarship that suggests that the environment would significantly benefit from clearly defined property rights, that when people have a sense of ownership over a resource they are likely to use it sparingly (Stroup & Baden, 1983:8; Hatcher & Bailey, 2011:3; Mabuza, Sithole, Wale, Ortmann & Darroch, 2012:71). The most valued resource in African societies is land. It is after all a form of actualisation and being part of a community is still revered, particularly in rural settings.

Rural settings are predominantly customary land tenure and residents rely heavily on the environment and ecosystem services as they cannot access remote resources. Ecosystems are invaluable to rural residents and the State alike. The former benefits from direct and inexpensive access of ecosystem services, and the latter benefits by alleviated expenses as they do not have to subsidise these services for the rural folk (Monadjem & Nkosi, 2001:3). However, the rural poor continue to experience harsh environmental conditions caused by rising consumption, even though they are minority consumers as set out in the United Nations Human Development Report Overview (UNDP, 1998:4).

At the crux of the poverty and environmental degradation dilemma is population growth. As people live longer, with family planning being sporadic and reverse migration occurring, the rural population expands. As a result natural resources come under strain for farming stands, grazing and in some cases deforestation to create more space for people to live in (UNDP, 1998:5). Clay and Reardon (1998:1) point out that this presents an enormous challenge because sustainability and population growth are inextricably linked and therefore require a simultaneous solution.

There is general consensus that land tenure reform that promotes sustainable resource use and ensures access to land could be the panacea for environmental degradation (Ostrom, 2010:1). There is, however, uncertainty in tenure systems that hinder this. The Swaziland Environment Authority (SEA) has identified this problem, saying that unclear tenure results in non-existent enforcement to protect biodiversity. Residents, bereft of exclusive rights to their resources,

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Page | 2 are unable to keep others away from the limited resources to ensure sustainable use of natural resources (Monadjem & Nkosi, 2001:60).

Also, customary land tenure is often mistaken for communal ownership as both tenures require a formal admittance of new members and land acquisition in both can be through inheritance. But chiefs are the true powers that be in customary tenure versus all members in communal ownership. Stroup and Baden (1983:7-8) say that the fallacy usually is that all residents gain from public land when in actual fact decision-making usually rests with certain individuals who promote their self-interests. Politicians and bureaucrats are infamous for using institutional discretion for personal benefits.

In Swaziland, tenure is broadly divided into three types, namely crown land, freehold and customary tenure (Mabuza , 2012:71). Crown (government or state land) and freehold (where people buy land and get title deeds issued) are of least interest to this study. Customary land, the bulk of Swaziland that accommodates the rural population, is the focus of the study, and how its reform could impact the sustainability of common resources.

1.2 BACKGROUND AND RATIONALE

According to the United Nations Population, Environment and Development: The Concise Report, (UNPED, 2001:15), global ecosystems are under pressure. In 2007, the Fourth Assessment Report, compiled by the Intergovernmental Panel on Climate Change (IPCC), reinforced the fact that there was a rise in global temperatures as a result of human activities driven by incessant consumption (Swilling & Annecke, 2012:31). This consumption is, according to the United Nations Human Development Report Overview (UNDP, 1998:1-5), skewed towards the wealthy and statistics show that the wealthiest 20 per cent of people consume up to 86 per cent, and the poor are left to suffer with 20 per cent of the latter, accounting for only 1, 3 per cent of the total global consumption.

It then follows that the growing population in rural areas across developing countries continues to magnify the scale of environmental management challenges. This growth is due to a typically higher rural fertility rate (Irin News, 2012) and reverse migration, a phenomenon where people emigrate from urban areas either because of high living costs or,

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Page | 3 for the financially fit, a change of scenery, as Connell and McManus (2011:27-28) assert. The result of this is a rural population expansion that shrinks available land (Coleman, 2011). Although evidence suggests that communities can devise robust systems to manage their resources, especially when the affluent among them support the cause (Ostrom, 2010:6), the elite rural immigrants alluded to by Connell and McManus (2011:27-28) can disintegrate prevailing institutional arrangements (Brown & Wardwell, 1980:51-53; Stroup & Baden 1983:9; Falk, Schulman & Tickamyer 2003:340). Ostrom and Hess (2008:5) and Stroup and Baden (1983:23) agree that leaders may receive incentives from the wealthy to bias decisions in their favour and add that others may deliberately water down efforts geared towards change because it may be divorced from their self-interest even if such change is for the collective good of the community. This raises the question of whether land tenure can be used as an instrument to ease poverty and protect the poor‟s livelihoods by giving them a voice and defending the resources on which they solely depend.

It is against this background that the study endeavours to assess whether changes in the Swaziland land tenure system promote the sustainable use of common resources or not.

1.3 SOME POINTS OF DEPARTURE

According to the Food and Agricultural Organisation (FAO, 2002:7) land tenure can be described as the set of rules outlining the rights and responsibilities in natural resource allocation. It specifies who owns what, to what extent and in what capacity.

There are varying interests associated with land tenure, namely:

1. Overriding – when the State makes and enforces the final decision with regard to a resource.

2. Overlapping – when different groups have rights to the one area, but for different purposes.

3. Complementary interests – when different groups share the same rights to a resource for the same use.

4. Interests can also be competing, like when different groups all lay claims to an area for the same utility (FAO, 2002:7-8).

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Page | 4 The FAO further classifies land tenure into four, namely:

a. Private – where an individual or a corporation or specific family have exclusive rights to a resource.

b. Communal – where the community has rights to a resource, for example to a pasture. Community members are authorised to prohibit unacknowledged people from using their resources.

c. Open access – free for all and no one has a right to keep the next person away from that resource.

d. State-owned – where rights to property are given to the Government (FAO, 2002:8).

Land rights under customary tenure include but are not limited to: the freedom to build and continuously improve on a dwelling place; to farm and lay the dead to rest; to bequeath land to descendants and to protect it from intruders. Governments are needed to uphold and administer these rights (Adams, Sibanda & Turner, 1999). Adams (1999) describe land tenure reform as an attempt to alter the rules and provisions of land allocation with intent to protect people‟s claim to land and curtail landlessness. This is a prerequisite for local investment and sustainable use of land. This exercise must contend with overpopulation of communal areas, linked rights to land, abuse of the system by traditional leaders and politicians and non-existent budgets to facilitate reform.

1.4 POPULATION GROWTH

Growth in population compromises quality of life as it accelerates damage to natural resources and decreases biodiversity and, by extension, ecosystem services on which human kind, especially rural dwellers, significantly depend. According to Hinrichsen and Robey (2014) population growth is overtaking food supplies in 64 out of 105 countries. Two billion hectares of cultivable land has already been degraded. Freshwater, a finite resource is projected to be scarce sooner rather than later. In 2025, when the global population will be an estimated 8 billion people, about 48 countries – home to about 3 billion people – will deal with freshwater scarcity (Hinrichsen & Robey, 2014).

Combined with improved technologies, population growth exerts pressure on the environment (Stroup & Baden, 1983:8). A link between population, development and environment was declared at the 1992 United Nations Conference on Environment and

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Page | 5 Development (UNCED) and reiterated two years later at the International Conference on Population and Development. Following the declaration of this link, developing countries created frameworks for preventing poverty-induced environmental degradation. Environmental policies continually engage a participatory approach to indigenous people and states in South America, Southeast Asia and South Central Asia have pioneered this movement (UNPED, 2001:16-18).

Although population growth is a significant factor in deforestation and influences overall per capita consumption and pollution, commercial logging surpasses it by far. However, when overpopulation occurs next to a protected area, it becomes significant, in which case governmental institutions are needed to limit settlement. This is not without its complexity as some of the people occupying the land may be indigenous to the area and possess some use rights to that resource (UNPED, 2001:16-18, 25-26). Wenner (2013) asserts that overpopulation is the principal ecological dilemma.

1.5 PROPERTY RIGHTS

Property rights are the rules and regulations governing the relationship between people and property (Investopedia, 2014). They can be held in private, be communal or public or there can be state ownership. When private, property rights are specific, exclusive, transferable and enforceable (Hodge, 1995:32-39). Public property or open-access resources are, by contrast, characterised by absent ownership and non-existent regulation. Open-access resources are typically overused because all users tend to overharvest and pollute the resource in the absence of any form of regulation (Monbiot, 2003:374). Hardin (1968:1243-1248) foretold of a tragedy of the commons, a situation that arises when people possess property rights to a common resource. In his example of a common pasture he said that the pastoralists would in no time start adding their number of livestock, quickly overtaking the carrying capacity of the common pasture. The pasture would eventually collapse under the pressure of extra livestock to the peril of all pastoralists. From this narrative he erroneously concluded that privatising property rights and entrusting their regulation to the State were the only ways to avert the tragedy. At the core of his argument Hardin (1968:1243-1248) said that people were inherently self-serving at the cost of co-owners to a resource. His main flaw, however, was in likening common property resource to open access when it is in fact an aspect of private property (Hodge, 1995:32-39).

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Page | 6 Common resource management has also been frowned upon by traditional economists because of its low productivity and high transaction costs (Ostrom & Hess, 2008:6). However, the view that privatising property was the only remedy to the common resource management problem, was vehemently denied by, among others, Cox (1985:49-61), Monbiot (2003:373-374) and Ostrom (1990:14-16; 1999:1; 2010:1-9) for the reason that the premise of his argument, a commons and not an open-access area, was wrong.

Although these authors concede that where there is a lack of social mechanisms to control resource use, environmental degradation occurs, Stroup and Baden (1983:20) assert that setting up clear property rights in previously misused resources controls the problem of overuse.

Examples of property rights are:

1. The right to manage, indicating how and to what extent a resource may be used, clarifies the terms of use.

2. Exclusion rights, which allow deserving property rights owners to keep away or remove from their resource people who are not mandated to benefit from that resource. This right also encompasses the procedures on how to cede or transfer rights to other individuals should the need arise.

3. Alienation rights provide steps to how a property owner can lease or sell his or her property, although this does not include inheritance (Schlager & Ostrom, 1992:251).

Extensive work by the likes of Ostrom challenged Hardin‟s conclusions. It became clear that where people had access to a resource but had no relationship with each other, they would most likely create a tragedy as opposed to when they had some camaraderie and were thus driven by group interests. Patriotism alone, however, cannot yield collective best interest. This realisation exposes the need for collaboration of affected communities and external institutions in containing elitism and maintaining order (Ostrom, 1990:8-9). Generalising in common property governance, as per Hardin (1968:1243-1248), remains unwise as all communities are unique and therefore require diverse management arrangements (Ostrom, 1999:1; 2010:1-9).

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Page | 7 1.6 MIGRATION

Although population growth by percentage has declined, absolute rural numbers are still significant, rising from 2 billion in 1960 to 3,2 billion in 2000 worldwide. In Africa the rural population rose from 225 million to 487 million during the same period. (UNPED, 2001:27). As of 2011 the African rural community was estimated at 552 million and it was forecast that by 2025 this number will have grown by 98 million. A large number of these people (will) live in unfavourable customary tenure conditions (Alden Wily, 2011a:7).

When faced with scarcity, humans migrate to areas that provide better environmental conditions than where they are currently resident. This is, of course, counterproductive because while it provides relief to the place of origin, it immediately strains the host resources. Rural to rural migration is very common in countries with higher rural contingents. Natural disasters and environmental degradation have been identified as push factors for this type of migration although there is not much empirical evidence to corroborate the claim as environmental factors are usually intertwined with socio-economic and religious factors. Where rural population growth is prevalent, environmental degradation issues abound and the rural population growth, migration and environmental degradation nexus has been around since the 1950s (UNPED, 2001:29-34).

1.7 RESEARCH PROBLEM

The study focuses on the evolution of the Swaziland land tenure system and its impacts on the sustainable management of common resources namely land. Customary land tenure is the norm in most African countries and often possesses cultural and mystical connotations. These factors lend to the complexity of land tenure systems. This study investigates how sustainable environmental management is enhanced or worsened under the current dispensation. It interrogates the land tenure system readiness to deal with matters of population growth and socio-economic inequality. Lastly the study gauges the flexibility of the system to evolve into a vehicle of sustainability and social justice.

The research problem is that the Swazi land tenure reform does not promote responsible and sustainable use of resources. Therefore, there is a need to do a review or carry out a study that will give an insight on the promotion of responsible and sustainable use of resources.

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Page | 8 1.8 RESEARCH QUESTION

What has been the impact of land tenure change on the sustainability of common resources in Swaziland?

1.9 RESEARCH OBJECTIVES

1. To compare and contrast a communal governance system and traditional governance (chiefdoms) and explore how the Swaziland land tenure system has responded to the growing population.

2. To establish whether environmental management concerns inform land tenure strategy in Swaziland.

3. To make recommendations for sustaining common resources under the existing system.

1.10 THEORETICAL FRAMEWORK OF THE STUDY

Hardin‟s theory (1968:1243–1248) on the inability of individuals to collectively self-govern their common resource is the point of departure for this study. Ostrom‟s later view (1990:14-16; 1999: 2; 2008:3), supported by extensive experimental work, challenged Hardin‟s view and concluded that common resource governance was not only possible but that it could also flourish. She articulated that for that to happen, it was imperative that property rights be explicit on whom the owners were so that they could legally keep unintended beneficiaries away from the resource.

Land tenure (in) security has been said to affect people‟s relation to the resource, in the sense that a secure tenure translates to a meaningful and sustainable relationship between man and his environment. Likewise, insecure tenure encourages recklessness in dealing with the environment as man wants to capitalise his benefit within an unknown time frame.

In her conclusions Ostrom (1990:14) admitted that no one governance system surpasses the other in resource management. She, instead, admitted to the complexity of resource management and encouraged collaborative governance. The study therefore explores governance in terms of complexity and the need for collaboration in present times.

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Page | 9 Lastly the study looks at how livelihoods can be improved and sustained by a secure land tenure and collaborative governance.

1.11 RESEARCH DESIGN

The research design is qualitative. Sampling was non-probability and purposive. Key informants were identified – from Central Rural Development Board (CRDB), SEA, Land Management portfolio of the Ministry of Agriculture and Cooperatives (MOAC), Swaziland National Trust Commission (SNTC), Yonge Nawe Environmental Action Group (YNEAG) and the University of Swaziland – and in depth individual interviews were conducted using structured interview questionnaires.

1.12 RESEARCH METHODOLOGY

An extensive review of literature predominantly meets the research objectives. It gives a theoretical background of the underlying concepts, i.e. common resource governance, sustainable livelihood, population growth, migration and customary land tenure in the global, African and local contexts.

Structured interviews with identified key informants gave an indication of the readiness and flexibility of the present tenure to respond to the need for sustainable management in view of the growing population.

1.13 LIMITATIONS OF THE STUDY

Because of the uniqueness of the characteristics of land tenure the conclusions of this study cannot be generalised to other countries.

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Page | 10 1.14 OUTLINE OF CHAPTERS

The chapter outline will be as follows:  Chapter 1 is the introduction.

 Chapter 2 covers common property rights and land tenure systems.

 Chapter 3 unpacks the policy and institutional framework for land tenure in Swaziland (Land tenure in Swaziland).

 Chapter 4: Findings.

 Chapter 5: Evaluation and recommendations.  Chapter 6: Summary and conclusions.

1.15 SUMMARY

This chapter contends that the reason scholars are calling for defined property rights, especially with regard to rural communities, is because this would likely result in responsible environmental management of resources. As elaborated, various studies have shown that the rural poor become severely dependant on the environment for sustenance of their livelihoods. The burden on the environment has increased in recent years owing to population growth, which exerts pressure on resources and is exacerbated by such factors as migration. The rural poor have no means to effect large-scale consumption, but suffer the most excruciating effects of a degraded environment, often residing in marginal lands.

The next chapter unpacks how the poor remain tenants on their indigenous lands and are incapacitated from affecting activities going on in their communities because they are not owners of the land on which they reside. The commons and the on-going assault meted by the State and elite, using slightly modified or fundamental colonial laws to enrich themselves at the cost of the rural poor, are reflected on.

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Page | 11 CHAPTER 2: COMMON PROPERTY RIGHTS AND LAND TENURE SYSTEMS

2.1 INTRODUCTION

This chapter gives an overview of the composition and property rights in the commons and how the land tenure system is weakened to facilitate capture by the State and elite (Stroup & Baden, 1983:23), who then lease it to investors at nominal prices. It traces the colonial endeavour to dismantle the commons from Europe to Africa. The composition of the elite and the way it disintegrates existing communal institutional arrangements, using its (acquired) status to influence leadership on issues from which it stands to massively benefit (Brown & Wardwell, 1980:1-53; Falk , 2003:340; Connell & McManus, 2011:27-28), is also discussed. It is argued that indifference to customary tenure propels poverty (FAO, 2002:3; Monbiot, 2003:374).

2.2 THE CURRENT STATE OF THE ENVIRONMENT

The dried springs and rivers, bare mountains, crowding and extinguished habitats are all telltale signs of resource degradation around the world. Forests, necessary for soil binding, erosion prevention, water regulation, carbon sequestration, climate stabilisation and biodiversity enhancement, are shrinking (UNDP, 1998:4; Ostrom, 1999:1). A larger proportion of this deforestation, the report says, is prevalent in developing countries while the produce is consumed by first world countries. This trend – that the poor suffer and lose livelihoods for the luxury of the affluent – is no longer sustainable. In fact, it defeats the very purpose of a morally reliable sustainability defined by Turner, Pearce and Bateman (1994:32–33).

Archaic environmental management methods have been overtaken by modern challenges and sustainability has become a vital variable to any transformation that seeks to change the reality of over two billion human beings already living in dire straits (World Bank, 2007:227; Swilling & Annecke, 2012:11). In order to realise the sustainable future hoped for, the focus should be on restraint and no longer on technological advance, as has been the norm (Swilling & Annecke, 2012:3). Such restraint has not been forthcoming where issues of cruel

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Page | 12 land acquisition (by foreign companies, domestic elite and governments), much to the detriment of the disadvantaged, are concerned.

Land acquisition is not a new thing. It, in fact, started during colonial times, for the establishment of forests and rangelands (Alden Wily, 2011a:27). Wildlife protection and conservation efforts for the benefit of the affluent soon followed (Khan, 2002:16) and land use has evolved to such uses as mining, industrial and military infrastructural projects, biofuel production and large-scale agriculture, timber extraction, rubber plantation and oil palm plantation (Murombedzi, 2014). Most of this land, about two thirds as per Alden Wily (2013), was captured from impoverished and investment-hungry Africa. These land transfers are characterised by indifference to community tenure, rent seeking, huge environmental costs and conflict as people try to hang on to their only resource (Murombedzi, 2014).

2.3 COMMONS

The term commons loosely refers to vacant public lands (Schlager & Ostrom, 1992:249), but it traditionally denotes resources owned jointly by specific communities and comprises virgin lands safeguarded by communities for their massive value as forests, meadows or swamps (Cousins, 2006:488-489; Alden Wily, 2011a:1). Commons are typically vast and whole, and they are about 740 million hectares in Africa alone. This is an attractive feature, which makes the commons vulnerable for large-scale investment opportunities by investors, the State and the elite (Alden Wily, 2007:43-45; 2011c:733).

Communal domains are a superset of both the commons and individually owned residential and farming land. While common property can be tied to the whole community, residential and farming land belongs to, and is controlled by, individuals and families (Cousins, 2006:489; Alden Wily, 2007:45). The distinction between these lands and associated rights and prohibitions is deeply entrenched within customary tenure.

Commons derive their integrity from the anchoring customary rules, so the two can never be separated. The existence of land rights in the commons system is endorsed and guided by communal norms similar to how statutes validate freehold (Elliot, 2004:130; Alden Wily, 2007:46).

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Page | 13 Since community compositions are diverse across all regions, it is not unusual to find that the norms of one community are not at all applicable or are a variation of the norms practised by another (Alden Wily, 2007:46). This serves for a complexity in tenure unappreciated by state prescribed abstract solutions to perceived (or real) resource degradation. This is illustrated by Monbiot (2003:373-74) in his account of the Masai and Turkwell River hunter and gatherer communities in Kenya who were forced to settle by the Government and United Nations, a step which inadvertently turned their commons into an open-access area, giving rise to environmental degradation and displacement of people into marginal lands. It is lamentable that only a small number of countries, in the whole Sub-Saharan Africa recognise commons as community property worthy of protection, namely Tanzania, Ghana and Mozambique (Alden Wily, 2011b:3).

2.4 PROPERTY RIGHTS IN THE COMMONS

The varieties of rights within a commons as illustrated by Ostrom (2008:3) are listed below. People can own just one right or a combination or the whole bundle, depending on their status with regards to the resource. These rights set the tone for how the resource will be used by establishing who has what rights, for what purpose, during which seasons and for how long. They are:

a. Access – where people are allowed to enter a bounded property. b. Withdrawal – rights allowing collection of products from a resource.

c. Management – the right to oversee the use patterns of all members and suggest improvement.

d. Exclusion – the right to exclude others from the resource if they do not form part of the constituency.

e. Alienation – freedom to sell or lease any of these rights.

In her later work with Schlager, Ostrom (1992:249-262) further divided these rights into two themes. These are: the operational level, which is the umbrella for access and withdrawal rights, and the collective choice level, which comprises the administrative, exclusion and alienation rights. They also offer a useful distinction between rules and rights with the former being the framework through which the latter are devised. Rights naturally have attached responsibilities.

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Page | 14 2.4.1 Property right holders

Property rights holders are classified into authorised users, claimants, proprietors and owners. Authorised users are the least powerful group and only have access and withdrawal rights, which are usually granted by the propriety or the owners. Tensions usually arise between authorised users and proprietors or owners as they try to harvest the most they can from a resource before access is curtailed. In addition to being authorised users claimants also possess management rights, but they cannot sell or lease a resource. Authorised users and claimants would be ordinary members of the commons and together they can design operational level governance rules (Schlager & Ostrom, 1992:249-262).

Proprietors are collective action rights holders who manage resources and are authorised to keep aliens out of the resource. Despite considerable power, these are still not owners and they are typically chiefs or trustees in a commons situation. Alienation rights are what separate the owners from the rest of the users. These rights (alienation) basically mean that they can sell or lease the resource if they so wish. It also means that they can be entrepreneurial with the access and authorised user rights that they can confer on deserving persons. This group would typically be the elite and the State in a commons situation.

The combination of the alienation and exclusion rights provides its holders with the incentive to sustainably manage its resources so as to maximise profits. It has the potential to put underutilised resources into productive use. Conversely the threat of overexploitation and higher environmental discounts lurk, depending on the owner‟s intentions for that resource (Schlager & Ostrom, 1992:256).

2.4.2 De jure and de facto property rights

Property rights can either be or . rights are the formal and enforceable group which resembles the European derived norms. rights are more informal and although they can be defensible in a court of law, they are inherently inferior to their

counterparts. When a government allocates a resource to a group of people, those people retain a right to that resource, but the self-organisation that they do independently of the State to better manage their resource is (Schlager & Ostrom, 1992:254).

Commons therefore have a combination of and rights and Ostrom‟s (1990) work, among others, has found legitimate and vibrant application of rights to resources.

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Page | 15 rights are important because they are an enabling environment for productive, efficient and independent self-organisation to thrive. They also grant ownership effectively, reducing the panic that often triggers over exploitation due to desperation. Administration costs of resources are usually internalised by beneficiaries, significantly reducing inefficiencies and possible duplication. On the flip side rights have been used to derive sweeping reforms which dismantle vibrant systems (Schlager & Ostrom, 1992:256-258).

Rights are most useful when they guarantee outright resource ownership (Stroup & Baden, 1983:7) and, as the theme of this paper suggests, access and not ownership is usually guaranteed for millions of rural dwellers.

2.5 INDIGENOUS PEOPLE AND THE COMMONS

The term indigenous tenure evokes thoughts of ancient and possibly outdated systems and people, a thinking which may justify the present predicament of people under the patronage of this system. It is, however, not wrong to associate indigenous tenure and communities because these have always been intertwined and feed off each other. Indigenous people therefore hold rights to land by virtue of historical occupancy and use. For them there is an unbreakable bond between livelihood and land (Elliot, 2004:130). Just like statutory laws and regulations, indigenous norms are flexible and resilient owing to their existence, despite the lower status afforded to them as compared to the latter. Hence there is a need to recognise indigenous communities and tenure as a present-day phenomenon that has been passed from previous generations. After all it is no longer the ancestors who guide current people, but the present generation continuously customise existing norms to suit the present situation (Cox, 1985:53; Alden Wily, 2011c:734).

Positively, some first world indigenous people have successfully contested their rights to the commons. Land rights and resources were legally reinstated to Australian indigenous communities in 1992, followed by Canada in 1997. These judgements set an optimistic precedent for the South African Ritchersveld ruling that was handed down by the Constitutional Court six years later (Alden Wily, 2007:48).

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Page | 16 2.6 COMMONS AND SUSTAINABLE LIVELIHOODS

The commons are normally the only real asset for the poor and this motivates sustainable management as they contribute immensely to rural livelihoods and survival (Stroup & Baden, 1983:11; Alden Wily, 2011c:739). Prior to the economic decline Zimbabwe‟s 35 per cent of the rural poor depended on common woodlands to survive and about 75 per cent of Zambian poor shared the same fate. Over and above the products that people harvest from the commons, there is an appreciation of the all-encompassing African culture which is accommodating to both the peasants and the wealthy. This livelihood is said to be lost at a mean rate of five million hectares per year (Alden Wily, 2007:44) and the poor are most affected. This is because they do not possess the economic muscle to make alternative arrangements for survival. According to Alden Wily (2007:47) in Africa alone 564 million rural dwellers depend on the commons and this figure was projected to rise to 1.3 billion people by 2050.

Livelihoods get threatened when people have to contend with erosion, pollution of streams and a decline in fish stocks as consequences of mining or logging. Food provision is compromised when people are suddenly prohibited from hunting after the establishment of protected areas and conservation in their locality (Khan, 2002:18). Shelter and medicines are not spared, as are religious and culturally sacred places.

The poor are the ones who experience the brunt of the degraded environment, frequently dispossessed and forced to seek refuge in marginal lands (UNDP, 1998:4; Porter ., 2000:56). At the centre of this dispossession is the ambiguity of ownership in the commons. It is therefore important for any self-respecting land reform to prioritise ownership as the first hurdle to get over to ensure that the commons are not vulnerable.

Ignorance of real estate values as can be derived from rentals of the land by mining or logging investors or prospective ecotourism and carbon credits in respect of large-scale forest privatisation for carbon sequestration through reducing emissions from deforestation and forest degradation schemes also compromises the livelihoods of locals (Murombedzi, 2014). Infrastructural developments, like road construction, which are meant to improve livelihoods, can worsen them further by introducing the threats of disease and violence for the locals. Uncompensated indigenous knowledge may also be solicited from locals (Elliot, 2004:130).

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Page | 17 2.7 LAND TENURE

Tenure simply means landholding (Alden Wily, 2011b:1) or a “bundle of rights to land” (Grigsby, 2004:208). It is the relationship, regardless of cultural or statutory orientation, that governs individuals and groups with respect to land (FAO, 2002:7). Customary land tenure is the system most prevalent in rural African societies and it operates expansively in agrarian economies. It is usually unique to its host community because it draws from its norms, often leading to the misguided belief by customary residents that user rights conferred to community members can be defined as statutory customary freeholds (Cox, 1985:53; Alden Wily, 2007:44-48; 2011b:2). It is both a social system and a legal code.

Despite the advent of state making in the continent, customary tenure still dominates rural Africa (Alden Wily, 2011c:734-735). In fact, even industrial economies like Italy, Switzerland, Spain and Portugal, parts of Europe, North America and Oceania still have heavy influences of customary tenure in the rural parts of their countries (Alden Wily, 2011b: 2). It is because of this historical tie that the lack of statutory recognition of customary tenure does not deter residents‟ consideration of themselves as the rightful owners of their domains (Alden Wily, 2007:48).

Tenure security is immeasurable and is largely what people perceive it to be; hence it adapts contextually. According to FAO (2002:18-20) tenure security is the assurance that a personal or a group privilege to a resource is acknowledged by others and is deserving of protection should conflicting claims arise, a right. In the absence of this assurance people are easily evicted and instantly lose their livelihoods and this has often resulted in conflict, like the Sudan civil war which was sparked by disagreements pertaining to land ownership (Alden Wily, 2007:43-45).

Membership to social communities defends property rights and promotes social cohesion. Therefore, the total security enjoyed by a person or family is the cumulative security provided by all sources, be it the State, the community and neighbours. Governments and the formal legal systems can weaken community tenure by accepting illegal encroachment by foreign enterprise or by withholding some rights from the affected community. Conversely, the State may also protect the community from trespassers if it so wishes by providing physical security against encroachers. Tenure security may also be compromised when trying

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Page | 18 to title or secure rights to uses unrecognised by the State. Uneven relationships as embodied by the elite and peasantry in communities may also threaten tenure security, with the wealthy cordoning off the best pieces of the land for themselves and simultaneously denying the poor access (Cox, 1985:52). Lastly, pandemics like HIV/AIDS also lend weight to tenure insecurity, particularly for widowed women (FAO, 2002:18-20).

2.8 TENURE (IN) SECURITY AND SUSTAINABLE LIVELIHOODS

Land tenure (in) security influences the actions people take based on the anticipated outcome of those actions and the incentives available for managing a resource in a certain way (Schlager & Ostrom, 1992:256). As Monbiot (2003:373) says, most entrepreneurs are interested in getting a return on their investment and environmental issues are not important to them. Stroup and Baden (1983:11) reiterate this point, asserting that, “agents with no stake in the residuals of the bargaining process have no direct and personal interest in reducing the cost of that process”. This is the opposite of the environmentally sound management likely to be practiced by the locals who have strong bonds with the land and related ecosystems like coastal regions and streams (Ostrom, 1990:23; Elliot, 2004:130). As investors possess the economic resources to reinvest elsewhere, they are free to go when the inflicted degradation becomes a liability to their business, leaving behind an infertile and degraded environment for the poor to scavenge (Monbiot, 2003:373).

Vague tenure often leads to environmentally unfriendly ways to secure land as people scramble to establish a sense of ownership by whatever means, or desperately harvest the most they can while they can (FAO, 2002:23; Schlager & Ostrom, 1992:252).

There is a correlation between insecure land tenure and the poor land use which accelerates environmental degradation. Ambiguous rights remove the incentive to implement long-term resource measures. When uncertain of the ability to reap the rewards of restraint and hard work, people are less likely to use resources sustainably but may desperately try to harvest whatever resource as much as possible while they can still access it (Schlager & Ostrom, 1992:257). Likewise seasonal investors may look to maximise their returns within the allowed time frame. This outlook inevitably employs unsustainable methods and a discounting of massive environmental and social costs occurs (FAO, 2002:23; Monbiot, 2003:373; Elliot, 2004:130).

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Page | 19 State grab of lands also are to the detriment of the environment and inadvertently induce an ‟open-access‟ situation. Examples abound where grazing land restriction of pastoralists resulted in serious overcrowding of the next available resource as farmers had no indication when rights to that resource would also be recalled. An indirect consequence of this is that what institutional arrangements there were in the communities tend to fall away as degradation worsens (FAO, 2002:24; Monbiot, 2003:373).

2.9 THE POLITICS AND COMPLEXITY OF COMMON PROPERTY RIGHTS According to Müller (1997:114), environmentalism is inherently political because it not only leans on social action but looks to governmental involvement to achieve its goals. Common resources, and by extension common property rights, are politicised because powerful entities have a vested interest in them. These entities are: the State, which guards its interests and will encourage investment in their local communities even when it disenfranchises the majority; international financial organisations and the banking magnates, whose strict conditions attached to much needed financial aid have driven throngs of people to poverty; the conglomerates who are driven by the need to realise profits and will do anything in their power to maintain and support a dispensation that guarantees them nominally leased land and resources so they can maximise on profits (Porter, Brown & Chasek, 2000:35-78). The State, as protector and legislator, often uses the law as a tool to oppress or ignore the plight of its people, as do the elite, a cluster of political, professional and social heavyweights who wield remarkable influence on all spheres of government (Alden Wily 2011a:41, 47; Murombedzi, 2014). These roles are elaborated in the section below.

2.9.1 The State

The organic role of the State is to protect its citizens, resources and frontiers. It is only the State that may negotiate with other States on behalf of its people, pledge or adopt regimes for its betterment. In their discussion of agents in the environmental arena Porter (2000:35-78) assert that States also have, at varying degrees, the power to influence global environmental matters by either opposing or supporting certain regimes. Another avenue to make a State‟s position heard is through protocol memberships.

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Page | 20 Soberly, Murombedzi (2014) asserts that the colonially induced concept of the inferiority of customary tenure is used to dispossess rural people of their rights, resources and democratic space of self-actualisation. A prime example is the Malaysian Sime Darby deal which was meant for oil palm production. Having been concluded without any community consultation, the deal was purported to negatively affect more than a million people of whom 150 000 would experience this negative impact immediately or within the first five years of the development (Murombedzi, 2014). Adverse effects included possible loss of homes, farms, cemeteries and sacred sites. Water supply resources and forests were not spared the threat. Naturally, communities raised complaints and were rewarded with a visit from the president herself (Sirleaf Johnson), who told them that the country‟s Constitution vested land rights on the government and that when the government signs any documents with foreign countries the communities had no power to change that, affirming Stroup and Baden‟s (1983:8) view that governmental control removes decision-making from the owners and bestows it in the laps of lawmakers and civil servants. Chastising the community, President Johnson is said to have warned them to stop undermining their own government and that such behaviour would result in investors leaving and Liberia regressing to days of old.

In the African battle for the commons, it is sadly the State that is most culpable of the disintegrating poverty levels and loss of livelihoods (Elliot, 2004:132). This is termed the “politics of exclusion”. There remains a wide disconnect between the State‟s interests and those of the rural communities and so the degradation of land, a major threat to rural livelihoods, continues unabated (UNDP, 1998:6; Alden Wily, 2011c:736). Alden Wily (2007:44) and Elliot (2004:132) contend that States have the incentive to maintain the prevailing situation regarding the ambiguity of commons ownership. By taking cognisance of customary ownership and its implications on the commons, the State might lose on the additional revenue that it currently enjoys. It is therefore in the State‟s best interest to suppress customary tenure, often overlaying it with remote administrative rules and boundaries to extend the governmental authority (Ostrom, 1990:21; Elliot, 2004:132; Alden Wily, 2011a:20; 2011c:740-741; Peters, 2013:542, 548-549; Murombedzi, 2014).

In Zambia, Sudan and Nigeria for example, the British indirect rule excluded vast forests and pasture resources which were later classified as public lands (Peters 2013:545). Alden Wily (2007:44-45; 2011a:8-9, 31,40; 2011b:4; 2011c:733) echoes that governments take undue liberties with their citizens‟ resources, labelling them as idle to make way for state ownership

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Page | 21 so that when governments broker deals with investors, the state officials are the ones who assume the leasing roles and not the representatives of the host community. To further maximise revenues by avoiding paying compensation and displacement governments typically channel investors towards unfarmed land, to nullify any resistance from resident communities. In the end it makes no difference to host communities whether these resources are sold or leased as lease terms are notoriously long, some going up to ninety nine years, excluding up to four generations from meaningful use of the resource.

Current top lessors in Africa are: the Democratic Republic of the Congo, Sudan, Ethiopia, Liberia and Mozambique, followed by Madagascar, Ghana and Zambia. Gabon, Congo Brazzaville, Cameroon and the Central African Republic are also some major leasing States. There is literature that declares that up to 70 million hectares of public land may have been leased between 2007 and 2011 (Alden Wily, 2011c:736).

2.9.2 The law

A potent tool that States use to cheat their own people from their resources is the law. It is already known that land takings rely heavily on and actually worsen the weak legal status of communities to land (Alden Wily, 2011a:2). States deliberately live on the precepts of colonial masters, which treated unregistered, untitled land as vacant, paving the way for governments to lend or sell these lands to whomever they pleased at negligible cost, if any (Alden Wily, 2011c:740; Peters, 2013:546). Some domestic governments, like Gambia, Madagascar and Benin, slightly revised colonial laws, but left the vulnerability of common lands intact (by affording customary tenure an inferior status to its European derived property rights counterpart) to carry on unabatedly with plantations and mining activities, among others, at negligible cost.

Senegal and Malawi, through laws passed in 1964 and 1965, abolished customary ownership altogether and recalled original titles from chiefs, while the Sudanese 1970 law bestowed ownership of all untitled land to the government. In 1974 Cameroon, followed in 1975 by Nigeria, through law tenanted customary landholders. It is no surprise then that by 1990 more than half of Sub-Saharan African nations had more than half their lands nationalised, dispossessing their citizens. The law was used as a tool again when introducing wildlife, rangeland and forest legislation, which supported and protected the state ownership of these resources (Khan, 2002:16-21; Alden Wily, 2011c:742).

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Page | 22 The law has stubbornly persisted with a dualism that continuously erodes customary tenure of any legitimacy. The prevailing attitude that statutory land tenure only applies to European property norms and is a misfit to custom still reigns supreme (Alden Wily, 2007:48; 2011c:733-735; Peters, 2013:549), enabling the demise of customary tenure through the weak legal status it currently upholds. Laxity of law can be blamed for the situation in Ghana where chiefs, anticipating more demand to meet urban expansion needs, have outright declared themselves as owners of the land. Custom dictates that they be trustees. Likewise in Kenya, where a land grab is said to have been spurred by the anticipation of law reforms that will disallow individual titling on community lands (Alden Wily, 2011c:733-735).

2.9.3 Status of land reform in Africa

Some African countries have taken steps to change the tide. As will be illustrated below, accomplishment varies from country to country, each with its own drawbacks. Alden Wily (2011a:44-51) gives the following account on the status of land reform in Africa. Tanzania (1999), Uganda (1998), Ghana (1986, 1994), Mozambique (1997), Southern Sudan and to some extent the Republic of South Africa can be said to be the leaders in the move for statutory recognition of customary tenure. In these countries community engagement is mandatory for investors looking to establish businesses. However, the law does not give benchmarks on what would constitute acceptable community involvement. As a result no significance is placed on majority community participation nor is there a succinct requirement for consent to investment by affected communities. The absence of local governments or assisted programmes and thrusting disempowered communities to negotiate with clever business people have been major drawbacks (Alden Wily, 2011a:44-51).

The South African Constitution (1996) entrenched recognition of customary tenure. Further the passing of the Communal Land Rights Act 11 of 2004 was meant to fast-track restitution processes, but it encountered a setback when it was withdrawn due to its preference for chiefs as rightful owners of the commons which was decried as undemocratic.

Southern Sudan passed the 2009 Land Act which for the first time recognised public land as a residual category that could only be affixed to areas where customary tenure did not apply. Under this law common properties can be registered by individuals, families and even communities, and open access are only allowed where a resource has been declared as state

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Page | 23 property (Alden Wily, 2011a:44-51). Although formal consent from affected communities is not a requirement for business establishment, compensation is non-negotiable and is fixed at the same rate as statutorily held property. Inefficient community involvement and lack of vibrant support structures are the drawbacks for the Southern Sudanese.

For all its aggressiveness Mozambican tenure reform (the 1997 Land law calls for customary tenure to be recognised even when areas have not yet been statutorily registered) law does not provide the administration and local level support that would make land restoration a reality for displaced citizens (Alden Wily, 20012:23). While Benin (2007), Cote d‟Ivoire (1998), Burkina Faso (2009), Niger (1993, 2000), Angola (2004), Senegal (1964, 1996) and Lesotho (2010) do acknowledge customary tenure, they do not endow it with the same legal stature as private property. Despite Benin‟s law being a result of a vigorous local consultation and acknowledgement of land holding, fishing, pasture and involvement in delimiting the commons with every right assigned, it still does not constitute full title as per European norms. Certificates of ownership can be issued on request and commons are legally accepted as collateral for credit.

Countries with mixed support include Botswana (1968), Namibia (2002) and Madagascar (2005). Under these countries only houses and farms can be registered under customary tenure, leaving the commons still vulnerable. In Botswana this vulnerability has been exploited by the elite mainly as cattle ranches. In Namibia, although some schemes have devised competitive benefit sharing, the elite has grabbed about 2 500 hectares of the commons in respect of boreholes and fencing rights. Even though Madagascar devolved 1500 rural communities, the country still confiscated historically owned grasslands for the State and it is leased wantonly (Alden Wily, 2011a:44-51).

Uncertainty clouds the Swazi, Malawian and Kenyan efforts at customary tenure recognition. Swaziland started a land reform but it lost traction in 1999. Although Malawi‟s 2002 Land Policy was set to restore community land, its principles were to privatise and formalise land sales essentially extinguishing customary tenure (Silungwe, 2005:1). It did not see the light of day, largely due to resistance from chiefs who felt that their powers were being circumvented. In Kenya recent strides seem to have triggered a land grab as councils swiftly register untitled land in anticipation of a law outlawing this (Alden Wily, 2011a:44-51).

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Page | 24 Northern Sudan (1984), Cameroon (1974), Mali (1993, 1996, and 1997), Chad (1967, 2000) Democratic Republic of the Congo (1967, 1973, and 1980), Gabon (1967) and Somalia (1975) have, through laws passed in the bracketed years, shown the least support for customary rights recognition (Alden Wily, 2011a:44-51).

2.9.4 International law

International law remains ineffective as countries are not bound by its precepts and there are no mechanisms in place to enforce it because of sovereignty limitations. The prevalent lack of political will, manifested by loud political silences, also undermine international law (Elliot, 2004:20-21). This is why, despite the Rio Declaration on the legitimacy of indigenous people and the call for governments to not only recognise but support their identity, culture and interests, a majority of rural residents are just as poor and vulnerable.

2.9.5 The elite

The elite are a group of individuals who endeavour to manipulate policies in which they have a vested interest (Stroup & Baden, 1983:23). Their contribution is crucial for the survival of the land expropriation trend prevalent in Africa today. It is usually easier for them to influence outcomes as they constitute traditional, political, economic and not unusually legal and military influence (Cousins, 2006:506). Such attributes make it easier to facilitate cheap leasing or sale of land and result in a combination of persistent self-interested groups that exert remarkable control over certain policies. Rights in rural Africa depend on social status and identity based on power relations; they are in fact politically entrenched (Cousins, 2006:506). A common trend in Africa is for people to retain their rural land even after relocating to the city or even overseas. Over time urban dwellers gather enough influence to annex large farms from the commons, effectively making them statutory private property (Alden Wily, 2011b:3). Once privatised, these farms are sold off to investors without any regard for communal reaction. Due to improved economic status, wealthy villagers may also maintain larger than allowed numbers of livestock which degrades the commons to the detriment of the resident rural citizens.

It is worth noting that the elite have been around since time immemorial as per Cox‟s (1985:52) assertion that customary tenure evolved with communities and there were the lords and peasants. Such segregation has always meant that the wealthy members can hoard more resources. After all, they possess the economic power to make this a reality; hence Alden

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Page | 25 Wily‟s (2011c:737) assertion that capitalism only made a bad situation much worse. The United Nations Human Development Report Overview (UNDP, 1998:4) adds that access favours the wealthy at the expense of the poor, that is, the urban residents rather than the rural.

The elite yield greater advantage in rent-seeking opportunities afforded by foreign investment as seen by chiefs conveniently assuming ownership to harvest these gains. It is much to the poor‟s detriment when interests of the local elite and international investors converge, which they often do, in for example agribusiness ventures (Alden Wily, 2011c:733, 737-740). In short, the better off benefit from abundance of consumption while the poor languish from the deprivation arising from environmental damage (UNDP, 1998:4).

The return of wealthier community members who migrated to cities often alters the existing institutional arrangements of the community (Brown & Wardwell, 1980:51-53; Falk , 2003:340; Alden Wily, 2011a:41; Connell & McManus 2011:27-28). In Pakistan, for example, large property owners have a preference for leasing their farms to wealthy foreign investors as opposed to the locals (Alden Wily, 2011a:40).

2.9.6 International financial organisations

According to Porter (2000:53-58), multilateral financial organisations like the International Monetary Fund (IMF), the World Bank and regional banks are the modern day tools used by former colonial masters to retain influence in the commons. The vast financial resources in their possession made it easy for them to attach strict conditions to developing countries who were only eager to receive financial backing (Alden Wily, 2011c:739), a discourse which saw the least powerful countries surrender control of their financial planning for imposed mercantilist approaches (Shah, 2013). Shah (2013) adds that the hard-hitting approach of financial institutions to developing countries irreparably destroyed some ecosystems and indigenous communities.

Reinert (2009:1-34) blames this move on the “terrible simplification” of solutions derived by First World countries for the developing world. There is a tendency of First World countries to apply diligent research and resources for domestic policy formulation but to easily impose abstract models to distant places like Africa. The shortfall of this approach by the First World governments is that they are usually so far removed from reality that imposed solutions end

Exploring the impacts of land tenure system change on the sustainability of common resources in Swaziland

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